Death Penalty in Botswana

GUILTY OF MURDER WITH EXTENUATING
CIRCUMSTANCES: TRANSPARENCY AND THE
MANDATORY DEATH PENALTY IN BOTSWANA

ANDREW NOVAK*

ABSTRACT
The Southern African nation of Botswana retains a mandatory
death sentence for the crime of murder, against the modern trend
toward discretionary death penalty regimes. Since mandatory death
sentences failed to control sentencing discretion, Southern African
nations, including Botswana, introduced the doctrine of extenuating
circumstances by which defendants may prove they lack moral blame-
worthiness because of a factor that influenced their mind when com-
mitting the crime. The doctrine, however, lacks many of the more
transparent features of a discretionary death penalty regime; namely, it
shifts the burden to the defendant, it does not apply objective guide-
lines or standards outside of judicial precedent, and its application is
subject to low scrutiny on appeal. The mandatory nature of Bot-
swana’s death penalty regime is not constitutionally required, and a
discretionary death penalty would be more transparent and thus
would better prevent arbitrary application and the possibility of
mistake.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
II. DISCRETION AND THE MANDATORY DEATH PENALTY . . . . . 179
III. EXTENUATING CIRCUMSTANCES IN SOUTHERN AFRICA IN
COMPARATIVE PERSPECTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
IV. TRANSPARENCY AND THE DOCTRINE OF EXTENUATING
CIRCUMSTANCES IN BOTSWANA . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
A. The Doctrine of Extenuating Circumstances Fails to
Adequately Guide Judicial Discretion in the Sentencing
Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
B. The Doctrine Improperly Shifts the Burden to the
Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

* J.D. Candidate, Boston University School of Law, 2009; M.Sc. (Hons.) African
Politics, School of Oriental and African Studies, 2006. The author would like to thank
Jesse Fecker for his helpful comments on earlier drafts of the article. In addition, the
author received significant assistance from the dedicated staff and fellow volunteers at
the Ditshwanelo Botswana Centre for Human Rights in Gaborone, Botswana.
173

174 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 27:173

C. Secrecy in the Death Penalty Appeals Process
Aggravates the Lack of Transparency in Judicial
Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

I. INTRODUCTION

Shortly after dawn on August 26, 1995, guards led five men from their
isolated cells in Gaborone Central Prison.1 One of the men was badly
wounded, covered in blood and bandages after attacking two prison
guards the night before.2 As authorized by the Botswana Penal Code
§26,3 the guards bound the hands and shackled the feet of each man and
placed a black cotton hood over their heads.4 One by one, the prisoners
mounted the scaffold and the state executioner placed a rope five centi-
meters in diameter around each man’s neck.5 The executioner pulled the
lever and the bodies of the five men fell through a trap door.6 When their
bodies stilled, they had become statistics: the twenty-eighth through
thirty-second prisoners executed since Botswana’s independence in 1966.7
The executions of these five men, Tekoetsile Tsiane and his two co-
conspirators David Kelaletswe and David Bogatsu, along with convicted
murderers Obusitswe Tshabang and Patrick Ntesang, abruptly ended
almost a decade of a de facto moratorium on the death penalty in Bot-
swana.8 Executions were once simple, uncontroversial exercises. By
1995, that complacency had ended, not least because of the sweeping
changes in Southern Africa over the previous decade. Botswana had
been, more or less, “Africa’s most successful example of an open, trans-
parent, and democratic government,” free from the poverty, civil unrest,
and white minority rule that characterized its neighbors.9 A growing civil

1 Beaten, Shot, and then Hanged, BOTS. GAZETTE, Aug. 30, 1995, at 2.
2 Id. Prisoners Hanged: Tekoetsile Fights to the Bitter End, MIDWEEK SUN (Bots.),
Aug. 30, 1995.
3 Bots. Penal Code § 26.

4 Executed!, BOTS. GAZETTE, Sept. 6, 1995.

5 Id.

6 Id.

7 FEDERATION INTERNATIONALE DES LINGUES DES DROITS DE L’HOMME &
´ ´

DITSHWANELO – BOTSWANA CENTER FOR HUMAN RIGHTS, THE DEATH PENALTY IN
BOTSWANA: HASTY AND SECRETIVE HANGINGS 18 (2007), available at http://www.
fidh.org/IMG/pdf/Botswana473angconjointpdmjuin2007.pdf [hereinafter FIDH &
DITSHWANELO] (erroneously omitting the name of Patrick Ntesang). Given the
secretive nature of the death penalty in Botswana, the list may be incomplete.
8 The last person previously executed appears to have been Olibile Rankhibibu, on

Oct. 10, 1987. Id. at 34.
9 Charles Manga Fombad, The Separation of Powers and Constitutionalism in

Africa: The Case of Botswana, 25 B.C. THIRD WORLD L.J. 301, 302-03 (2005).

2009] MANDATORY DEATH PENALTY IN BOTSWANA 175

society began demanding stays of executions and Batswana10 society, for
the first time, publicly debated the merits of the death penalty.11
The Botswana Court of Appeal upheld the five death sentences in Jan-
uary 1995.12 Because the death penalty in Botswana is mandatory for the
crime of murder, the death penalty is the presumed sentence unless the
defendant can show beyond a fair preponderance of the evidence that
extenuating circumstances weigh against imposition of the death pen-
alty.13 The doctrine of extenuating circumstances softens the rigidity of a
mandatory death sentence. In theory, the doctrine allows a judge to con-
sider circumstances that impacted a defendant’s mind at the moment of
the crime. Extenuating circumstances are those factors reflecting on the
moral blameworthiness, as opposed to the legal culpability of the defen-
dant.14 In practice, scrutiny may be more searching and broad, consider-
ing both policy and personal factors.15 This scrutiny depends on the judge
alone, without recourse to legislative guidelines or standards.16 This lack
of transparency is an obstacle to a rational death sentencing process.
For the five men, the Court found extenuating circumstances insuffi-
cient and sustained the sentences. The appeal by Ntesang rested on a
claim of emotional distress.17 Tshabang argued that his youth—twenty-

10 “Batswana” refers to the members of Botswana society (singular: Motswana), or
alternatively the members of the Tswana ethnic group. Daniel D. Ntanda Nsereko,
Extenuating Circumstances in Capital Offenses in Botswana, 2 CRIM. L.F. 235, 235 n.1
(1991).
11 Ditshwanelo Urges President to Abolish Death Penalty, Grant Clemency to Five

Men, BOTS. DAILY NEWS, May 29, 1995; Ditshwanelo Calls on Government to Abolish
Death Penalty, BOTS. DAILY NEWS, Aug. 22, 1995. The newspapers also were divided:
The Voice and The Botswana Gazette advocated abolition of the death penalty, while
Mmegi supported retention. See generally Editorial, Death Sentence, MMEGI, Sept. 1-
7, 1995, at 6; Comment, The Ultimate Penalty, THE VOICE, Aug. 25 - Sept. 7, 1995, at 6;
Comment, BOTS. GAZETTE, Nov. 1, 1995, at 10.
12 Tshabang v. State, [1995] B.L.R. 132 (Bots. Ct. App.); Ntesang v. State, [1995]

B.L.R. 151 (Bots. Ct. App.); Kelaletswe v. State, [1995] B.L.R. 100 (Bots. Ct. App.).
13 Nsereko, supra note 10, at 235, 264.
14 Id. (citing State v Letsolo 1970 (3) SA (A) at 476 (S. Afr.)).
15 Id. at 260 (describing how courts have recognized as extenuating circumstances

the ill treatment of the accused by an employer; the presence of an ailment such as
epilepsy; the health of the victim, who would not have died but for his condition; and
economic plight of the accused).
16 ELIZABETH MAXWELL & ALICE MOGWE, IN THE SHADOW OF THE NOOSE 20-21

(2006) (noting that the list of extenuating circumstances has been left open and judges
have wide discretion).
17 Ntesang, an automobile mechanic, was convicted of the murder of customer

David Lubinda late in 1991. The murder was premeditated, as Ntesang and another
accomplice tracked down the victim some time later. Ntesang made out a claim of
extenuating circumtances resting on emotional distress over legal action Lubinda
brought for stolen car parts. Even if he were under some stress, the judge found, his
reaction was not spontaneous. Ntesang, [1995] B.L.R. at 3-6.


one at the time of the crime—lessened his moral blameworthiness.18 The
“Motokwe three” claimed an absence of premeditation during a felony
murder robbery, and the fact that, among them, only one bullet was
fired.19 Ntesang also brought a constitutional challenge, claiming that the
death penalty was barbaric, inhuman, and degrading.20 But § 4(1) of the
Constitution of Botswana is explicit: “No person shall be deprived of his
life intentionally save in execution of the sentence of a court” for a capital
crime.21 The Court in Ntesang accepted that the death penalty may well
be anachronistic, but upheld the death penalty in light of the death pen-
alty savings clause in § 4(1).22 Such clauses are commonplace in the
developing world.23
After the Court confirmed the five death sentences, the last reprieve
was commutation or pardon by the President of Botswana,24 then
Ketumile Masire.25 Pressure continued to mount from the press, relig-
ious leaders, and diplomats, as well as a growing sector of Batswana soci-

18 Tshabang was convicted of murdering David Thurabi and throwing his body
down a wall near a cattle post. He also stole the victim’s car. He claimed his age and
the lack of premeditation qualified as extenuating circumstances. Tshabang v. State,
[1995] B.L.R. 132, 1-2, 14 (Bots. Ct. App.).
19 Kelaletswe, Bogatsu, and Tsiane were convicted for the murder of Phillipus

Wilhem Bruwer. The three men burglarized the store owned by Bruwer and his wife
and killed him in an altercation. In the felony murder, only one bullet was fired. The
three men also claimed their immaturity and lack of previous convictions weighed
against the death sentence. Kelaletswe, [1995] B.L.R. 100, 1,3, 5-6, 32 (Bots. Ct.
App.).
20 Ntesang, [1995] B.L.R at 3.
21 BOTS. CONST. ch. 2, § 4(1).
22 Ntesang, [1995] B.L.R at 15-16.
23 See, e.g., INDIA CONST. pt. 3, art. 21 (“No person shall be deprived of his life. . .

except according to procedure established by law.”); ZIMB. CONST. ch. 3, art. 12(1)
(“No person shall be deprived of his life intentionally save in execution of the
sentence of a court in respect of a criminal offence of which he has been convicted.”);
BELIZE CONST. ch. 4, pt. II, § 4(1) (“A person shall not be deprived of his life
intentionally save in execution of the sentence of a court in respect of a criminal
offence under any law of which he has been convicted.”); NIGERIA CONST. art. 33(1)
(“Every person has a right to life, and no one shall be deprived intentionally of his
life, save in execution of the sentence of a court in respect of a criminal offence of
which he has been found guilty in Nigeria.”).
24 The President has a constitutional duty to review every death sentence. BOTS.

CONST. ch. 4, § 55(1).
25 Botswana has had four presidents since independence: Seretse Khama (1966-

1980), Ketumile Masire (1980-1998), Festus Mogae (1998-2008), and Ian Khama (2008
- ). JAMES DENBOW & PHENYO C. THEBE, CULTURE AND CUSTOMS OF BOTSWANA
xviii-xxi (2006). In 2008, President Mogae retired and Vice President Ian Khama, the
son of the first president, succeeded to the presidency. African Voices: Ian Khama,
CNN WORLD, March 6, 2009, http://edition.cnn.com/2009/WORLD/africa/03/05/
av.iankhama/.


ety.26 The President stalled. For six months, the prisoners lingered on
death row, in constitutional limbo.
On June 6, 1995, in the midst of the civil society debate on the death
penalty in Botswana, the Constitutional Court of South Africa unani-
mously struck down the death penalty as a cruel, inhuman, and degrading
punishment.27 The decision was one of the most visible and comprehen-
sive in the history of the modern anti-death penalty movement. The gal-
lows at Pretoria Central Prison took 2,173 lives between 1967 and 1989,
as many as seven at one time.28 For South Africa, the decision ended an
era of arbitrariness and racism in the apartheid regime’s criminal law.29
Botswana continues to look to South African law for much of its legal
precedent and borrows extensively from South Africa’s legal traditions.30
South Africa was the birthplace of Botswana’s legal system, a product of
the English common law and the Roman-Dutch law of the white
Afrikaner nations, superimposed onto African customary laws and legal

26 For a discussion of public opinion, see The Death Penalty. . . What People Say,

BOTS. GUARDIAN, Aug. 11, 1995 at 13, and Joseph Balise, Should Killers Be Killed?
Divergent Views on Death Penalty, SUNDAY TRIB., Sept. 3 1995, at 1. In addition,
residents addressed chiefs (kgosi) and expressed views on the death penalty at
traditional Batswana community gatherings (kgotla). Philbert Kebihetswe, Tutume,
Sebina Residents Urge Gov’t to “Uphold Death Penalty,” BOTS. DAILY NEWS, June 2,
1995. For NGO activism, see Cynthia Nkemelang, Participants Call for Abolishment
of Death Penalty, BOTS. DAILY NEWS, May 1, 1995, which describes a lecture panel
organized by Ditshwanelo. For statements opposing execution of the five men by
Anglican Archbishop of Central and Southern Africa and Catholic Bishop of
Gaborone, see Pamela Dube and Mesh Moeti, Death Penalty: Is It Necessary?,
MMEGI, Feb. 10-16, 1995, at 15.
27 State v Makwanyane & Mchunu 1995 (3) SA 391 (CC) (S. Afr.)

28 Photo Caption, MAIL & GUARDIAN (Johannesburg), Oct. 20-26, 1995.

29 George Devenish, The Historical and Jurisprudential Evolution and Background

to the Application of the Death Penalty in South Africa and Its Relationship with
Constitutional and Political Reform, 5 S. AFR. J. CRIM. JUST. 1, 23-27 (1992)
(summarizing available evidence on race and South Africa’s death penalty).
30 Nsereko, supra note 10, at 237 (explaining that most judges and lawyers were

trained in South African law schools and that many Botswana statutes are replicas of
South African statutes). For example, courts in both Botswana and Zimbabwe
weighed South African precedent on the disputed criminality of sodomy—although
neither ultimately followed South Africa’s lead. See, e.g., E.K. Quansah, Same-Sex
Relationships in Botswana: Current Perspectives and Future Prospects, 4 AFR. HUM.
RTS. L.J. 201 (2004) (describing how the Utjiwa Kanane case ultimately weighed and
rejected South African precedent); Oliver Phillips, Zimbabwe, in SOCIOLEGAL
CONTROL OF HOMOSEXUALITY: A MULTI-NATION COMPARISON 43, 48 (Donald J.
West & Richard Green eds., 1997) (describing how Zimbabwe’s jurisprudence on
homosexuality would have to account for South Africa’s new constitutional
protections for gays and lesbians).


traditions.31 Colonial officials applied this hybrid regime to the vast
desert land between the Limpopo and the Zambezi Rivers in 1891, land
that became independent Botswana seventy-five years later.32
For the five prisoners, however, the South African decision had no
impact. The President eventually declined to exercise his constitutional
prerogative of mercy.33 Once awoken from hibernation, the scaffold in
Gaborone continued its work in fits and starts.34 At the same time, judi-
cial scrutiny of the death penalty has increased alongside the rise of a
nascent domestic human rights movement in Botswana. In late 1995, the
State charged two indigenous San35 defendants Gwara Motswetla and
Tlhabologang Maauwe with murder.36 A confluence of irregularities in
their trial, however, spared their lives. The Court, for the first time,
granted a stay of execution after the President had confirmed the death
sentences.37 In weighing extenuating circumstances, the Court consid-

31 See E.K. QUANSAH, INTRODUCTION TO THE BOTSWANA LEGAL SYSTEM 14-16
(2nd ed. 1998).
32 Id. at 9-11.
33 Presidents have rarely commuted sentences or pardoned prisoners on death

row. Nsereko, supra note 10 (noting that, in the previous ten years, the president
commuted three death sentences). For President Masire’s views, see Death Penalty Is
Here to Stay Says President Masire, BOTS. GAZETTE, Nov. 8, 1995.
34 Shortly before the five men were executed, the Court of Appeals reversed the

death sentence of a South African national, Anthony Ndlovu, finding extenuating
circumstances in intoxication, provocation, and absence of premeditation. The Court
admonished the prisoner’s poor counsel and reduced the sentence to fifteen years.
Ndlovu v. State, [1995] B.L.R. 432 (Bots. Ct. App.). See also Marcos Matebele, Court
Saves Man from Noose, MIDWEEK SUN (Bots.), July 19, 1995, at 1. On February. 2,
1996, the Court struck down the death sentence for Joseph Kgaodi because the judge
had considered inadmissible evidence in weighing extenuating circumstances. Kgaodi
v. State, [1996] B.L.R. 23 (Bots. Ct. App.). On February 11, the Court and upheld the
death sentence of Gaolatlhe Kwae. on Feb. 11, Kwae v. State, [1996] B.L.R. 159
(Bots. Ct. App.).
35 The San peoples are the descendants of the aboriginal population of Southern

Africa and are chiefly, but not exclusively, characterized by a hunter-gatherer
tradition. In Botswana, the San are known as the Basarwa, and historically the
population has been referred to as “bushmen.” Sidsel Saugestad, The Indigenous
Peoples of Southern Africa: An Overview, in INDIGENOUS PEOPLES’ RIGHTS IN
SOUTHERN AFRICA 22 (Robert Hitchcock & Diana Vinding eds., 2004). See also
Nicholas Olmsted, Indigenous Rights in Botswana: Development, Democracy and
Dispossession, 3 WASH. U. GLOBAL STUD. L. REV. 799, 802 (2004) (“Many San in
Botswana continue to be poor, with high unemployment rates, high infant mortality,
high incarceration rates, low literacy levels, and few assets.”).
36 MAXWELL & MOGWE, supra note 16, at 27.
37 Fombad, supra note 9 at 331 n. 174, quoting Ditshwanelo & Others v. Attorney

Gen. & Another, [1999] 2 B.L.R. 59. The Ditshwanelo Botswana Centre for Human
Rights in Gaborone became the first non-governmental organization to intervene on
behalf of a criminal defendant and receive standing as a full party in the case.


ered sociological factors, in this case the marginalization of the indige-
nous San people.38 Eventually, the Court ordered a permanent stay of
prosecution because of inadequate legal representation, a language bar-
rier, and the unconstitutional delay between sentencing and
punishment.39
As these varying results make clear, mandatory death penalty regimes
do not remove the discretion inherent in a sentencing decision. Such
regimes only make this discretion less transparent: prosecutors will not
prosecute; jurors will not convict; executives will grant clemency. The
doctrine of extenuating circumstances does not properly guide this discre-
tion. If a judge finds that extenuating circumstances exist, he makes a
largely unreviewable determination that the convicted defendant should
not die. As Hood writes, legislation “fail[s] . . . to give any guidance as to
what can constitute an extenuating circumstance.”40 This system is not as
rational and consistent as a guided discretionary death penalty regime in
which a judge must articulate a specific aggravating factor in order to
warrant the death penalty.41 A lack of transparency in sentencing con-
tributes to arbitrariness or the possibility of mistake.42 Furthermore, the
mandatory nature of Botswana’s death penalty is not constitutionally
required according to § 4(1) of the Constitution.43 Constrained by prior
precedent upholding the validity of Botswana’s death sentence, a transi-
tion from a mandatory to a discretionary death penalty regime would be
a major step forward for human rights protections as it increases the
transparency and the rationality of the sentencing process.

II. DISCRETION AND THE MANDATORY DEATH PENALTY
At English common law, the death sentence was mandatory for the
crime of homicide.44 By the 1960s, all jurisdictions in the United King-

Maxwell & Mogwe, supra note 16 at 53-55. In addition, the High Court found the
actions of prison guards listening in on consultations between defendants and their
lawyer unconstitutional. The Court also ruled that defendants did not have a fair trial
due to ineffective legal representation and lack of language interpretation. Id. at 55-
61.
38 Id. at 66-67.
39 Id. at 60-63, 100. See also Ryder Gabathuse, Murder Suspects Seek Stay of

Prosecution, MMEGI (Bots.), Aug. 17, 2004.
40 ROGER HOOD, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 174 (3d ed.

2002).
41 In other words, where a judge must specifically articulate in writing the factors

that place a crime in a special category of seriousness, distinct from ordinary crimes,
the result is more transparent and provides a better guide for later judges to follow.
42 Arbitrariness and mistake are closely related. See CHARLES L. BLACK, JR.,

CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 14-22 (1974).
43 BOTS. CONST., ch. 2, § 4(1).
44 Case Comment, Mandatory Death Penalty Declared Unconstitutional for Failure

to Permit Consideration of Any Mitigating Circumstances—State v. Cline, 397 A.2d


dom and the United States had either abolished capital punishment or
replaced the mandatory death sentence with a discretionary one.45 In the
United States, this abruptly changed after 1972 when the U.S. Supreme
Court struck down Georgia’s death penalty in Furman v. Georgia,46 find-
ing that unchecked and unguided sentencing discretion led to arbitrary
and discriminatory results in violation of the Eighth and Fourteenth
Amendments.47 The states responded to Furman v. Georgia by removing
all discretion from the jury. The U.S. Supreme Court struck down this
approach, too, as an unconstitutional violation of the Eighth Amendment
in Woodson v. North Carolina.48 A courtroom may not treat individual
defendants as “members of a faceless, undifferentiated mass to be sub-
jected to the blind infliction of the penalty of death.”49 The Court held
that the mandatory death penalty only “papered over” the arbitrariness
problem; states needed, instead, “objective standards to guide, regularize,
and make rationally reviewable the process for imposing a sentence of
death.”50
Mandatory death penalty regimes constrain only a small part of the
discretion inherent in the criminal process: namely, in sentencing. So
long as unbridled discretion exists at other stages of the criminal justice
process, eliminating sentencing discretion will not remove all arbitrari-
ness from the final decision of which criminals should die.51 Since the
hands of the factfinder are tied once she finds guilt, the discretion of the
prosecutor in bringing the charge, appellate judges in reviewing the
charge, or the executive in ratifying the charge become magnified in close
cases.
As a result, the mandatory death penalty simply constrains discretion
at one point in the process and aggravates the discretion at other points.
“[Mandatory] death penalty statutes do not eliminate the potential for
arbitrariness with which Furman was concerned, but only alter the stages
in the criminal process in which arbitrariness can arise.”52 Prosecutors
may be more likely to bring a charge of manslaughter, defendants may be

1309 (R.I. 1979), 14 SUFFOLK U. L. REV. 578, 579 n.13 (1980) (presenting overview of
case law on the mandatory death penalty in the United States).
45 Id. at 580 (describing the state of the law in the United States); John W. Poulos,

The Supreme Court, Capital Punishment and the Substantive Criminal Law: The Rise
and Fall of Mandatory Capital Punishment, 28 ARIZ. L. REV. 143, 187-188 (1986)
(describing the state of the law in the United Kingdom).
46 Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).
47 See generally, Id. Note, Discretion and the Constitutionality of the New Death

Penalty Statutes, 87 HARV. L. REV. 1690, 1692 (1974).
48 Woodson v. North Carolina, 428 U.S. 280 (1976).
49 Id. at 304.
50 Id. at 303.
51 Discretion and the Constitutionality of the New Death Penalty Statutes, supra note

47, at 1712.
52 Id. at 1713.


less willing to plead guilty, and pardoners may review sentences more
intensively if the punishment of death is automatic. “[T]he impulse to
individualize treatment in nonsentencing stages becomes particularly
powerful when a major source of flexibility elsewhere in the criminal pro-
cess has been confined,” the Harvard Law Review editors concluded.53
As Berns notes, a mandatory sentence does not eliminate discretion, and
a jury, of the opinion that an offender does not deserve death, simply will
not convict him of the offense.54 This intertwines a guilt inquiry with a
sentencing one and results in jury nullification.

III. EXTENUATING CIRCUMSTANCES IN SOUTHERN AFRICA IN
COMPARATIVE PERSPECTIVE
In Southern Africa, a sentence of death is mandatory upon a conviction
of murder, unless the defendant can show beyond a preponderance of the
evidence that extenuating circumstances exist. The effect of this doctrine
is to create a new class of crime, “guilty of murder with extenuating cir-
cumstances.”55 This doctrine is one method of reducing the harshness of
a mandatory death penalty. Although court decision in South Africa, leg-
islative action in Namibia,56 and gradual disuse in Lesotho57 and Swazi-
land58 have ended mandatory death penalty regimes with doctrines of
extenuating circumstances, the doctrine survives in robust form in Bot-
swana and Zimbabwe. In 1990, the Zambian legislature confronted two
alternatives to the mandatory sentence: establishing a doctrine of extenu-
ating circumstances, or implementing a discretionary death penalty.59
The legislature chose the former, although a presidential moratorium on

53 Id. at 1715.
54 WALTER BERNS, FOR CAPITAL PUNISHMENT: CRIME AND THE MORALITY OF
THE DEATH PENALTY, 181 (1979). See Poulos, supra note 45, at 151-52 (“By the
summer of 1972, all thirty-five states that enacted death-penalty legislation granted
unfettered discretion to the jury or judge to impose or withhold capital punishment
for most capital offenses in their state. . . .”). Jury nullification may not have been the
primary motivation for the disuse of mandatory sentencing up to the point of the
Furman decision, but it was certainly one factor.
55 This formulation is mentioned in Ndlovu, in which the Court found that

extenuating circumstances existed and reduced the sentence to fifteen years. Ndlovu
v. State, [1995] B.L.R. 432 (Bots. Ct. App.).
56 Hood, supra note 40, at 250 (noting that Namibia abolished the death penalty in

1990, with the last execution occurring in 1988).
57 Lesotho has not executed anyone since 1995. Country Status on the Death

Penalty, Hands Off Cain, http://english.nessunotocchicaino.it/bancadati/index.php?
tipotema=arg&idtema=10000532 (last visited April 8, 2008).
58 Hood, supra note 40, at 248 (noting Swaziland last carried out an execution in

1989 and is considered de facto abolitionist).
59 John Hatchard, Developing the Criminal Law in Zambia: The Penal Code

(Amendment) Act, 1990, 36 J. AFR. L. 103, 103 (1992).


executions is currently in place.60 The doctrine of extenuating circum-
stances may become more widespread as the mandatory death penalty
regime declines in Africa.61
From a transparency perspective, however, the doctrine of extenuating
circumstances is not as successful at protecting the rights of prisoners as a
discretionary death penalty with clear judicial sentencing guidelines.
Defense advocates may be ill-equipped to carry the burden of proof given
the poor pay, short notice, and lack of experience that characterizes pro
deo representation.62 Artificially separating a legal culpability inquiry
from a moral blameworthiness one distorts the judicial role in a trial,
places the onus on a defendant to introduce new evidence or reinterpret
old evidence after his conviction, judges this evidence according to a
vague and ill-defined standard, and leaves the final decision, largely unre-
viewable, to a single finder of fact.63 Former Chief Justice Dumbetshena
of Zimbabwe admitted that the “common practice among judges” is to
“lean towards a finding of manslaughter or finding extenuating circum-
stances. Judges are reluctant to sentence people to death.”64
Most importantly, the doctrine has one further disadvantage. In a dis-
cretionary regime, a judge bears the “onerous and lonely task of literally
deciding between life and death,” Lund notes, which forces the judge to
understand the gravity of his task.65 In a pure mandatory regime, it is the
law and the law alone that sentences a convicted murder to death. A
mandatory death sentence with a doctrine of extenuating circumstances

60 Newton Sibanda, Zambia Not Delivering on Execution Ban, INDEPENDENT
ONLINE, June 26, 2007, http://www.iol.co.za/index.php?set_id=1&click_id=68&art_id=
nw20070626092100903C334951 (describing President Levy Mwanawasa’s moratorium
on the death penalty since 2004, ensuring no execution will take place during his term,
which runs through 2011).
61 Malawi struck down the mandatory death penalty as unconstitutional in 2007.

See infra note 218. Uganda struck it down in 2005. See infra note 223. Both
established discretionary death penalty regimes. For a comparison among African
nations, see RITA J. SIMON & DAGNY A. BLASKOVICH, A COMPARATIVE ANALYSIS
OF CAPITAL PUNISHMENT: STATUTES, POLICIES, FREQUENCIES, AND PUBLIC
ATTITUDES THE WORLD OVER 23-25 (2002) (comparing the death penalties of four
common law nations: Ghana, Kenya, Nigeria, and South Africa).
62 For the challenges of pro deo representation in Botswana, see infra Part IV.B.
63 For more on these criticisms, see D. M. Davis, Extenuation: An Unnecessary

Halfway House on the Road to a Rational Sentencing Policy, 2 S. AFR. J. CRIM. JUST.
205, 218 (1989) (on the distortion of the judicial role at trial); Nsereko, supra note 10,
at 264 (on the defendant’s burden); MAXWELL & MOGWE, supra note 16, at 20-21 (on
amount of discretion given to judges); and G. Feltoe, Extenuating Circumstances: A
Life and Death Issue, 4 ZIMB. L. REV. 60 (1986) (on the inability to review the
sentence).
64 E. Dumbutshena, The Death Penalty in Zimbabwe, 58 REVUE INTERNATIONALE

DE DROIT PENAL 521, 523-24 (1987).
´
65 James Lund, The Decision to Kill: Discretionary Death Sentences Purposes,

Principles and the Courts, 2 S. AFR. J. CRIM. JUST. 189, 189 (1989).


leaves discretion in the hands of the judge to determine life and death,
and then allows the judge to hide behind the law when the death sentence
is imposed.66 This is “an obstacle in the way of a rational decision-mak-
ing process,” according to Angus and Grant.67 This is, in short, a problem
of transparency. A discretionary regime that forces judges to articulate
aggravating factors meriting the unusual penalty of death, along with a
system of automatic appellate review, would mitigate the risk of mistake,
ensure the sentence is rational and legitimate, and avoid arbitrary and
discriminatory results. By demolishing this “unnecessary halfway house”
between mandatory and discretionary death penalties, Davis adds, “the
law would allow the courts greater freedom to deal legally with convic-
tion and penologically with sentence.”68
South Africa established a statutory mandatory death penalty in 1917,
codifying common law practice. Due to criticism over the Governor-
General’s frequent use of commutation, reprieve, and pardon, the doc-
trine of extenuating circumstances arose as a political compromise in
1935, allowing judges to carry some of the discretion placed on the execu-
tive.69 In 1990, a waning apartheid regime ended the mandatory death
penalty and adopted an American-style discretionary system with auto-
matic appellate review.70 The South African Constitutional Court found
this discretionary regime unconstitutional in 1995.71
Prior to South Africa’s codification of the mandatory death penalty,
the law had long developed exceptions for infanticide by new mothers
and murders committed by those under age 16.72 As codified in 1917,

66 Davis, supra note 63, at 218.
67 Laurel Angus & Evadne Grant, Sentencing in Capital Cases in the Transvaal
´
Provincial Division and Witwatersrand Local Division: 1987-1989, 7 S. AFR. J. ON
HUM. RTS. 50, 52 (1991); see also Davis, supra note 63, at 217.
68 Davis, supra note 63, at 212.

69 ROBERT TURRELL, WHITE MERCY: A STUDY OF THE DEATH PENALTY IN

SOUTH AFRICA 233-37 (2004). For a historical analysis of the political compromise
resulting in the creation of the doctrine of extenuating circumstances, including a
detailed portrait of the pre-1935 regime, see Ellison Kahn, How Did We Get Our
Lopsided Law on the Imposition of the Death Penalty for Common-Law Crimes?, 2 S.
AFR. J. CRIM. JUST. 137 (1989).
70 Ursula Bentele, The False Promise of Discretionary Imposition of the Death

Penalty in South Africa, 9 S. AFR. J. ON HUM. RTS. 255, 256 (1993).
71 State v. Makwanyane & Mchunu 1995 (3) SA 391 (CC) (S. Afr.) (finding that the

death sentence violated the rights to life and human dignity due to arbitrariness and
possibility of error, and that the state interest in retribution did not outweigh these
factors since other alternatives, such as life imprisonment, existed.) For an analysis,
see Ursula Bentele, Back to an International Perspective on the Death Penalty as a
Cruel Punishment: The Example of South Africa, 73 TUL. L. REV. 251 (1998).
72 Devenish, supra note 29, at 7-8. See also Angus & Grant, supra note 67, at 51

(“In case of murder [in pre-1917 South Africa], there was some dispute as to whether


these two exceptions,73 along with the crimes of treason and rape,74 mer-
ited a discretionary death sentence. After a jury would convict, Turrell
writes, the judge would write a confidential report recommending
whether he believed the sentence should be carried out.75 The Governor-
General reviewed these reports, along with one written by the Depart-
ment of Justice, in his clemency deliberations.76 In effect, the doctrine of
extenuating circumstances delegated some of this discretion to the judge.
Van Niekerk wrote later that the system of reprieve in South Africa was
opaque and unaccountable: “methods of investigation are, for all practi-
cal purposes, unknown to the outside world.”77 In addition, executive
clemency review “only contribute[d] very marginally to exclude all risk of
judicial error.”78
In the decade before 1935, only twenty-four percent of capital
sentences were actually carried out, since executive clemency was so com-
mon.79 In this period, Devenish writes, “only in theory did the
mandatory death sentence for murder apply in South Africa.”80 After
the establishment of the doctrine of extenuating circumstances in 1935,81
the number of murder convictions enormously increased, doubling in the
next decade; juries, hesitant to return a death sentence, found it easier to
convict for murder.82 Executive clemency only assumed importance in
hard cases.83 The doctrine of extenuating circumstances incorporated
many of the grounds on which executive clemency rested; murders by
new mothers, youths under eighteen, women, and political criminals usu-
ally qualified.84 Though less universal, murders involving witchcraft,

the sentence was mandatory at common law. However, there are a number of cases
in which the court took the view that it was discretionary.”).
73 P.M.A. HUNT & J.R.L. MILTON, 2 SOUTH AFRICAN CRIMINAL LA W AND
PROCEDURE: COMMON-LAW CRIMES 377 (2d ed. 1982) (citing Criminal Procedure and
Evidence Act 31 of 1917 § 338).
74 Angus & Grant, supra note 67, at 51.
75 TURRELL, supra note 69, at 247. The judge would include facts, defense, and

grounds for mitigation, including inadmissible evidence. This system was not
“standardless.” Indeed, judges were often faithful to common law guidelines. But it
was not transparent. Id.
76 Id. at 248.
77 B. v. D. van Niekerk, . . .Hanged by the Neck Until You Are Dead: Some

Thoughts on the Application of the Death Penalty in South Africa, 86 S. AFR. L.J. 457,
460 (1969).
78 Id. at 461.
79 Devenish, supra note 29, at 8.
80 Id.
81 HUNT & MILTON, supra note 73, at 377 (citing General Law Amendment Act 46

of 1935 § 61(a)).
82 TURRELL, supra note 69, at 233, 236.
83 Id. at 234.
84 Id.


provocation, intoxication, and mental disorder also were common
grounds for avoiding a death sentence.85 Over the course of the 1930s,
emotional disturbance, insanity, accomplice liability, and murder without
actual intention to kill also became common extenuating circumstances.86
The law, however, was not blind. Before the 1930s, the death penalty
fell heavily on poor whites and those of Indian or mixed-race descent.87
In the years before World War Two, the death sentence became an
overtly racist one, inflicted on the black majority by the white state.88
Extenuating circumstances “could not, and did not, even out the racist
biases embedded in the system.”89
South African President F.W. de Klerk ordered a moratorium on the
death penalty in 1990, one of the preconditions for entering negotiations
set by the African National Congress (ANC).90 The Criminal Law
Amendment Act of July 1990 replaced the mandatory death penalty with
a discretionary one and ensured the automatic right of appeal, compul-
sory judicial review where a prisoner did not appeal, and compulsory
executive review where a prisoner did not apply for mercy.91 The higher
courts had wider discretion in imposing lesser sentences. The law
replaced the doctrine of extenuating circumstances with broader-ranging
mitigating and aggravating factors, to be weighed by a judge before con-
viction.92 In Makwanyane, the Constitutional Court struck down this dis-
cretionary regime as unconstitutional: arbitrariness and the lack of
transparency haunt every death penalty regime, discretionary or not.93
These defects violated South Africa’s constitutional ban on cruel and
inhuman punishment and the right to life.94

85 Id. at 235.
86 Id. at 236.
87 Id. at 236-37. Before 1930, whites were generally not hanged for murder of

blacks; however, for crimes of passion or domestic murders, poor whites, as members
of the “civilized” race, were treated more harshly. Blacks, because of their “violent
tendencies,” were not executed for murdering other blacks nearly as often as poor
whites were for murdering other whites. Turrell posits that this may also have based
on eugenics, since blacks were considered degenerates. Id.
88 Id. at 231-32.

89 Id. at 237.

90 Jeremy Sarkin, Problems and Challenges Facing South Africa’s Constitutional

Court: An Evaluation of Its Decisions on Capital and Corporal Punishment, 113 S.
AFR. L.J. 71, 74 (1996).
91 Id.

92 Id.

93 State v Makwanyane & Mchunu 1995 (3) SA 391 (CC) (S. Afr.).

94 S. AFR. (Interim) CONST. 1993 ch. 2, § 11(2).


While colonial Zimbabwe likely had a mandatory death sentence for
murder since 1898,95 the white legislature of the British colony of South-
ern Rhodesia codified the doctrine of extenuating circumstances in
1949,96 and in 1960 in its modern form.97 In addition, a discretionary
death penalty also exists for infanticide, treason, rape, attempted murder,
aggravated robbery, and felony murder, or where the criminal is under
age sixteen.98 In addition, the white government of Rhodesia relied
extensively on its use for crimes of a political nature, such as sabotage,
sedition, arson, and terrorism.99 After independence in 1980, these laws
fell into disuse but remain on the books, according to former Chief Jus-
tice Dumbutshena.100
Although the judge is only concerned with moral blameworthiness, any
failed defenses at trial are relevant to finding extenuating circum-
stances.101 “[S]uch a vital matter as extenuation . . . depend[s] on the
exercise of subjective moral judgment based on rather nebulous fac-
tors.”102 The doctrine of extenuating circumstances does not give judges
guidance on how to weigh mitigating factors when aggravating factors
also exist.103 The Supreme Court requires lower courts to fully articulate

95 This was the year Zimbabwe adopted South Africa’s hybrid civil-common law.

W.J. HOSTEN, ET AL., INTRODUCTION TO SOUTH AFRICAN LAW AND LEGAL THEORY
204 (1977).
96 Dumbutshena, supra note 64, at 522 (citing Criminal Procedure and Evidence

Act 52 of 1949 § 16.)
97 Law and Order (Maintenance) Act of 1960 § 33(A).

98 Dumbutshena, supra note 64, at 527-8 (citing Criminal Procedure and Evidence

Act of 1949 § 314)
99 Law and Order (Maintenance) Act of 1960 ch. 65, § 24.

100 Dumbutshena, supra note 64, at 527.

101 Id. at 528.

102 Feltoe, supra note 63, at 61.

103 In a number of cases, the Supreme Court allowed judges to use either of two

similar tests to determine whether extenuating circumstances weigh against the death
penalty. In S. v. Phineas, the court laid out the two approaches: first, to consider all
those factors which reduce the moral blameworthiness of the accused and if the facts
warrant, to return a finding of extenuating circumstances. S. v. Phineas, [1973] 1
R.L.R. 260 (Rhodesia). Then, in a separate step, to decide on sentence, and at this
stage consider all aggravating features; if the aggravating features so warrant, the
court may sentence the defendant to death. Id. The alternative approach is to
combine the two stages into one, weighing mitigating against aggravating factors and,
if mitigating factors are greater, to reduce the sentence. “The end result in whichever
approach is adopted should, however, always be the same.” Id. at 263 (upholding
sentence due to harmless error where it was unclear which of the two tests the judge
used). As Beadle, C.J. wrote, “I have mentioned this question at some length because
I think judges should make it clear which approach they are adopting, as if they
confuse one approach with the other, this may in certain cases cause difficulty, though
I do not think it does so in the instant case.” Id. at 264. These differing approaches,


the reasons for a decision on extenuation.104 A virtually automatic right
of appeal exists, but not automatic review: the Supreme Court can only
interfere in the event of an irregularity or misdirection by the judge, or if
a finding that no extenuating circumstances existed was one at which no
reasonable court could have arrived.105 Feltoe believes this standard is
too high; although trial judge verdicts are authoritative since judges hear
evidence and witness testimony in person, extenuating circumstances rest
on judicial reasoning.106
The “Supreme Court should be relieved of what is an unnecessary con-
straint to overturning the impositions of the death penalty,” Feltoe
adds.107 “[It] is more likely that this policy would be consistently applied
if the decision-making process in all capital murder cases was more care-
fully structured.”108 He proposed a regime whereby the court would
identify all aggravating factors, which must be present for imposition of
the death penalty, before mitigating factors.109 Aggravating factors place
the crime in a special category of seriousness. Judges could refer to a
comprehensive list, or even an informal checklist, of aggravating factors
in making final life-and-death decisions.110 Guided sentencing schemes
may be one check on potentially arbitrary judicial discretion.

IV. TRANSPARENCY AND THE DOCTRINE OF EXTENUATING
CIRCUMSTANCES IN BOTSWANA
A series of high profile death penalty cases in Botswana have brought
international scrutiny to the country’s capital punishment regime. On
March 31, 2001, a white South African woman, Mariette Sonjaleen
Bosch, was executed for murdering the wife of a man she later married.
The fact that Bosch never admitted guilt before a divided tribunal con-
tributed to a public relations disaster.111 State officials dismissed the
international protest as racially charged due to the fact that the defendant
was white.112 Observers pointed to numerous irregularities; Bosch’s trial
judge had shifted the burden of proof from the prosecution to her, writing
in his opinion that “[t]he rule of evidence is that he who asserts a fact

both described as valid in Phineas illustrate the wide level of discretion left to judges
in determining extenuating circumstances. See Feltoe, supra note 63, at 62-63.
104 S v. Mateketa, [1985] 2 Z.L.R. 248 (Zimb.), cited in Feltoe, supra note 63, at 62.
105 Feltoe, supra note 63, at 64.
106 Id.
107 Id. at 65.
108 Id. at 82.
109 Id. at 83.
110 Id.
111 Bester Gabotlale, Death Penalty: Five Years After Bosch, Nothing Changed in

Botswana, INTER PRESS SERVICE NEWS AGENCY, May 17, 2006, http://ipsnews.net/
africa/nota.asp?idnews=33275.
112 Id.


must prove it. In the instant case . . . the onus was on the accused . . . .”113
Three judges on appeal wrote separately to find that the trial judge acted
improperly but without prejudicial error.114 She immediately made an
application for clemency. In late March, Bosch’s husband, her lawyer,
and human rights observers tried to visit her in prison one weekend.115
After they were turned away, she was quietly executed, writing in a final
letter to her husband, “They did not want me to see you.”116 Bosch’s
family and lawyer learned of her execution in the Monday lunch news
bulletin.117 The President never responded to her application for mercy,
and Bosch was executed while she was petitioning the African Commis-
sion on Human and Peoples’ Rights, an advisory body of the African
Union.118
Also on death row was another South African, Lehlohonolo Kobedi.
While Bosch was executed shortly after her appeal, Kobedi lingered for a
decade. Convicted of a murder in 1993, Kobedi was sentenced to death in
1998 and not executed until 2003.119 Kobedi was represented by four sets
of lawyers and twice appealed his case to the Court of Appeal challenging
irregularities in his trial. Represented by inexperienced pro deo counsel
and lacking interpreters in his native language of Sesotho,120 Kobedi chal-
lenged two of the most serious problems with the operation of Bot-
swana’s death penalty. First, he argued the doctrine of extenuating
circumstances was too restrictive since it barred consideration of mitigat-
ing factors before conviction, and second, that the long period of time he
spent on death row made a constitutional sentence unconstitutional.121
This is the so-called “death row phenomenon,” the theory that poor
prison conditions, excessive delay, and restrictions on health or spiritual
care would make a routine case one of cruel, inhuman, or degrading pun-
ishment.122 The Court of Appeal refused to reduce Kobedi’s sentence,

113 Bosch v. State, [2001] BWCA 4, 11 (Bots. Ct. App.).
114 Id. at 20, 110.
115 Gabotlale, supra note 111; Press Release, Ditshwanelo Botswana Ctr. for

Human Rights, Execution of Mariette Sonjaleen Bosch (April 2, 2001), http://
www.ditshwanelo.org.bw/april2pres.html.
116 Gabotlale, supra note 111.
117 Id.
118 Tim Curry, Cutting the Hangman’s Noose: African Initiatives to Abolish the

Death Penalty, 13 HUM. RTS. BRIEF 40, 43 (2006).
119 SA Man Executed in Botswana, S. AFR. PRESS ASS’N (SAPA), July, 19 2003,

http://www.news24.com/News24/AnanziArticle/0,6935,2-7-1442_1389683,00.html.
120 Press Release, Ditshwanelo Botswana Ctr. for Human Rights , Letlhlohonolo

[sic] Kobedi Executed on Friday, 18 July 2003 (July 18, 2003), http://
www.ditshwanelo.org.bw/july18pres.html (last visited March 23, 2008) [hereinafter
Press Release, Letlhlohonolo [sic] Kobedi Executed].
121 See Kobedi v. State, [2003] BWCA 22 at 3 (Bots. Ct. App.).
122 For a theoretical explanation of the so-called death penalty phenomenon, see

also Kealeboga N. Bojosi, The Death Row Phenomenon and the Prohibition Against


though it indicated he might have a strong case before the clemency com-
mittee.123 Since the workings of the clemency committee are secret,
“[w]e may never know whether the Clemency Committee considered the
Court’s recommendation, or the advocacy of Mr. Kobedi’s lawyers,” the
Ditshwanelo Botswana Centre for Human Rights admitted.124
This section will consider three major criticisms of Botswana’s sentenc-
ing process: first, the doctrine of extenuating circumstances is too inflexi-
ble to properly consider all relevant factors; second, the doctrine shifts
the burden to the defendant, placing the onus on often inexperienced
defense attorneys; and third, the inconsistencies of the doctrine are not
saved by secret executive clemency proceedings. A large, sparsely popu-
lated country, Botswana is one of the most economically successful and
well-governed countries on the African continent. Though limited by the
scourge of HIV/AIDS, Botswana retains a strong democratic tradition
and independent judiciary.125 This lack of transparency is partially a
product of Botswana’s comparatively low crime rate and exceptionally
unusual use of the death penalty as punishment.126 There are few oppor-
tunities for challenge, and the incentive to create firm guidelines for
judges is minimal.
Botswana’s legal system is an amalgamation of two distinct legal tradi-
tions: a European-derived hybrid regime of dual Roman-Dutch and
English common law ancestry, and an African customary law derived
from that traditionally administered by tribal chiefs.127 While an esti-
mated eighty-five percent of criminal cases are tried in the customary
courts, serious crimes such as murder are tried exclusively in the Euro-
pean-derived law courts.128 The British applied the criminal law in force
at the Cape of Good Hope to the recently-created Bechuanaland Protec-
torate in 1891.129 The Cape did not then have a penal code, so Botswana

Torture and Cruel, Inhuman or Degrading Treatment, 4 AFR. HUM. RTS. L.J. 303
(2004) (describing how conditions on death row and delay can make an otherwise
constitutional death sentence into impermissible cruel and unusual punishment).
123 Kobedi, [2003] BWCA at 62.

124 Press Release, Letlhlohonolo [sic] Kobedi Executed, supra note 120.

125 DENBOW & THEBE, supra note 25 at 1-2, 26.

126 “Despite the existence of the death penalty, it is not used very often in

Botswana.” Alice Mogwe, Will Basic Human Rights and Individual Freedoms
Continue to be Protected, Promoted and Respected? in BOTSWANA IN THE 21ST
CENTURY 49, 60 (Sue Brothers, et al. eds.,1994). For Botswana’s crime rate, see infra
note 229 and accompanying text.
127 See Bojosi Otlhogile, Criminal Justice and the Problems of a Dual Legal System

in Botswana, 4 CRIM. L.F. 521, 521-22 (1993) (describing the interaction between
received European-derived law and indigenous customary law).
128 MAXWELL & MOGWE, supra note 16, at 20.

129 Only those laws, both statutory and common, in force on June 10, 1891, are

applicable to Bechuanaland. See Nsereko, supra note 10, at 236.


received a largely traditional body of common law, with inherent
problems of uncertainty and unpredictability.130
In 1964, shortly before independence, Botswana promulgated its first
statutory penal code.131 This penal code, similar to the ones enacted in
British East Africa, is largely derived from English common law and not
from South African law.132 Where the law is unclear, English precedent
rather than South African precedent governs, a provision installed by
British authorities to protect Botswana from the influence of the
apartheid regime. However, since the majority of Botswana’s legal pro-
fessionals were trained in South Africa, and since Roman-Dutch common
law governs much of the legal sphere outside of criminal law, Batswana
judges cite and apply South African legal authorities.133 The doctrine of
extenuating circumstances survived the transplantation of English crimi-
nal law. As the Botswana Court of Appeal has written, “on the question
of extenuating circumstances the decisions of the courts of South Africa
have . . . [strong] persuasive force because the concept of ‘extenuating
circumstances’ in sentences for murder as introduced into the Penal Code
was plainly derived . . . from and based on legislation in South Africa.”134
The most important courts in Botswana are the two High Courts, which
have original jurisdiction over capital cases and other serious civil and
criminal legal matters, and appellate jurisdiction from the magistrates’
courts over less serious legal disputes.135 The Court of Appeal reviews
cases from the two High Courts.136 While the Court of Appeal generally
overturns High Court criminal sentences only if they are “so manifestly
disproportionate to the offence committed that no reasonable trial court
would have imposed it . . . ,”137 in practice, the Court of Appeal’s review
of death penalty decisions is much more searching.138 An accused can
appeal as of right, but the state can only appeal questions of law, not

130 Id.
131 See I.G. Brewer, Sources of the Criminal Law of Botswana, 18 J. AFR. L. 24, 28
(1974).
132 Id.

133 See Nsereko, supra note 10, at 237 (“No wonder, then, that decisions of the

South African courts have had such an impact on Botswana’s jurisprudence in matters
relating to the death penalty.”).
134 Gofhamodimo v. State, [1984] B.L.R. 119, 41 (Bots. Ct. App.).

135 Quansah, supra note 31, at 91.

136 Id. at 82.

137 Mudangule v. State, [1986] B.L.R. 265, 3 (Bots. Ct. App.), quoted in Nsereko,

supra note 10 at 239 n.7.
138 “[M]any convicts sentenced to death by the High Court have had their

sentences reduced to custodial ones by the Court of Appeal.” Nsereko, supra note 10,
at 266.


fact.139 As a result, if the High Court decides not to impose the death
penalty for a crime, the state cannot appeal.140
The death penalty existed at Tswana customary law, particularly for
conspiracy against a chief, and executions were often secret and sudden
without trial.141 With the establishment of the protectorate, this right
passed from the chiefs to the state. As was the case during the days of the
protectorate up to the present time, authorized by Botswana Penal Code
§26, “any person sentenced to death was ordered to be hanged by the
neck until dead.”142 Under the Penal Code, the death penalty may be
imposed for murder, treason, and piracy with intent to murder,143
although the latter two have never been tried.144 The death penalty is
mandatory for murder and treason except where extenuating circum-
stances exist. According to §203(2) of the Penal Code, “Where a Court in
convicting a person of murder is of the opinion that there are extenuating
circumstances, the Court may impose any sentence other than death.”145
Despite the text of the Code, it is settled law that the sentencing court
must impose a sentence other than death in the presence of extenuating
circumstances.146
Courts have recognized a number of extenuating circumstances:
Belief in witchcraft: Belief that the victim practiced witchcraft on the
accused or members of his or her family may be considered an extenuat-
ing circumstance.147 In Botswana, a witch, or moloi, was not human and
not fit to live; thus a perceived victim may seek to take the law into her
own hands.148 The Court of Appeal explained the rationale for the witch-
craft exception: “It is the state of the accused’s mind which is relevant
and the fact that the accused’s mind may be affected by irrational consid-
erations . . . cannot operate to disqualify an otherwise extenuating cir-
cumstance from being put into balance in favour of the accused.”149
Provocation: Disproportionate provocation, insufficient to reduce a
crime to manslaughter, may be an extenuating circumstance. As long as

139 Nsereko, supra note 10, at 238.
140 Id.
141 I. SCHAPERA, A HANDBOOK OF TSWANA LA AND CUSTOM 260-61 (1970).
W

143 Bots. Penal Code §34(1) (treason); §63(1) (piracy with intent to murder),

quoted in Nsereko, supra note 10 at 241.
144 Nsereko, supra note 10 at 267 (“To date the death penalty has been imposed in

murder cases only”). Two people, both South Africans, have been tried for treason,
but they were never convicted. Id.
145 See Bots. Penal Code § 203(2).


147 S. v. Mphapho, 1980 B.L.R. 232 (Bots. High Ct.).


149 S. v. Nkani, [1979] B.L.R. 195 (Bots. Ct. App.).


the provocation influenced the accused’s state of mind at the moment the
offense was committed, it is relevant to weighing her moral guilt.150
Absence of actual intent to kill: Malice aforethought, whether actual or
constructive, is required for a murder conviction.151 Therefore, the
absence of actual intent to kill may be an extenuating circumstance. This
is not an automatic result; for felony murder, constructive intent to kill—
that is, intent to commit the crime that resulted in death—may be suffi-
cient, as was the case with the “Motokwe three” in 1995.152
Intoxication: Intoxication is generally not a defense unless the intoxica-
tion is so severe that the accused could not control her acts or appreciate
their wrongness. Less serious intoxication, however, may be an extenuat-
ing circumstance, usually if coupled with some other factor.153
Youth: The youth and immaturity of the accused may constitute an
extenuating circumstance.154 “Courts are loath to . . . sentence young
offenders to death, which leaves no opportunity to reform.”155 Youthful-
ness may require another factor such as poor upbringing, emotional insta-
bility, provocation, or intoxication, and may be outweighed by
aggravating factors.
Other factors: The scope of extenuating circumstances is broad and
searching: “no factor, not too remote or too faintly or indirectly related to
the commission of a crime, which bears upon the accused’s moral blame-
worthiness in committing it, can be ruled out from consideration.”156
Thus, judges have found economic plight, state of health, abuse or mis-
treatment, and other factors to be extenuating circumstances. Indeed, in
the case of Maauwe and Motswetla, the Court found sociological factors
such as the plight of the marginalized indigenous San people to be
relevant.157
As Nsereko explains, in determining whether extenuating circum-
stances exist, the court must determine whether any factors existed that
might have influenced the accused’s state of mind at the time of his

150 Lowani v. State, [1984] BWCA 10 (Bots. Ct. App.) (where deceased called
accused a “Kalanga,” a member of a minority tribe, extenuating circumstances
found). See also Jonathan v. State, Crim. App. No. 36 of 1984 (Bots. Ct. App.) (where
a female taunted defendant with being a child, a weakling, and a bore, extenuating
circumstances found).
151 Bots. Penal Code § 202.
152 Nsereko, supra note 10, at 256. See also S. v Sebeko 1968 1 SA 496 (AD) at 497

(S. Afr.); S. v de Bruyn en ‘n Ander 1968 4 SA 498 (AD) at 512 (S. Afr.). See also
Kelaletswe and Others v. State, [1995] B.L.R. 100 (Bots. Ct. App.).
153 Nsereko, supra note 10, at 258. Chisoma v. State, Crim. App. No. 48 of 1984

(Bots. Ct. App.) (defendant had been drinking prior to being provoked).
154 See Lowani v. State, [1984] BWCA 10 (Bots. Ct. App.).
156 Rex v Fundakubi 1948 3 SA 810 (AD) at 818 (S. Afr.). This case is often cited

in Botswana opinions, such as Losang v. State, [1985] B.L.R. 281 (Bots. Ct. App.).
157 MAXWELL & MOGWE, supra note 16, at 66-67.


offense.158 This influence on the defendant’s mind must make the defen-
dant’s actions less morally reprehensible. According to the Penal Code,
in weighing extenuating circumstances the court must consider the
“behavior of an ordinary person of the class of the community to which
the convicted person belongs.”159 This indicates a subjective approach,
judging behavior according to one’s own peculiar circumstances.160 A
judge should consider the totality of the circumstances, mitigating with
aggravating factors, excluding prior convictions.161

A. The Doctrine of Extenuating Circumstances Fails to Adequately
Guide Judicial Discretion in the Sentencing Process
Death row defendant Lehlohonolo Kobedi raised a novel challenge on
appeal, namely that the lower court was precluded from considering miti-
gating factors at trial, which could include a broader range of factors than
the doctrine of extenuating circumstances. Specifically, in Kobedi’s case,
those factors would have included evidence of his close family life and his
good academic record. The Court dismissed this suggestion: “there is
nothing to preclude any mitigating factor being put before the court at
the stage when extenuating circumstances are being considered.”162
Extenuating circumstances, however, are limited to those factors which
could have impacted the moral blameworthiness of the defendant at the
time he committed the offense.163 Indeed, important public policy reasons
may exist for not putting a defendant to death for reasons unrelated to his
crime. Some of these reasons may be if a defendant apologizes or feels
remorse, if she undergoes religious conversion, if she has significant
familial obligations, or if she becomes seriously ill or requires medical
assistance while in prison.164 Indeed, even a defendant’s status as a first-
time offender is a mitigating factor, not an extenuating circumstance.165

159 Bots. Penal Code § 206(3).
160 Nsereko, supra note 10, at 263 (“The question to ask is not whether the belief

that influenced the accused to act the way she did was reasonable. Nor whether what
he did was reasonable. It is, rather, whether the accused genuinely and honestly held
the belief and whether it did in fact influence him to commit the offense.”).
161 Losang, [1985] B.L.R. at 2-3 (“In considering the question as to whether there

are or are not extenuating circumstances [the judge] took into account a serious
previous conviction of the appellant. This he can only do . . . after a finding that
extenuating circumstances exist, in determining the appropriate punishment.”).
162 Kobedi v State, [2003] BWCA 22, 43 (Bots. Ct. App.).
163 See Masina v. State, [1990] ZASCA 90 at 28 (S. Afr. Sup. Ct. App.).
165 A judge may not consider previous convictions or the lack thereof as an

extenuating circumstance. She may only consider these factors after she finds
extenuating circumstances, when deciding on another appropriate sentence. Nsereko,
supra note 10, at 264.


These factors are outside the scope of the doctrine and are generally not
grounds on which a judge can reduce a sentence of death.
The fate of a defendant may rest on the personality of an individual
judge. Judges have personal and strongly-held views on the death pen-
alty, but little empirical evidence exists in Botswana to show whether
these views are correlated to death penalty determinations. However,
empirical evidence from South Africa is voluminous. “Judicial attitudes
towards the death penalty play a material role,” Angus and Grant con-
clude from their research on judicial determinations of capital guilt in the
Transvaal region.166 One example from Botswana will suffice: famed
South African human rights lawyer, the Greek-born George Bizos, was a
judge of the Botswana Court of Appeal from 1985 to 1993.167 Bizos pre-
sided over only a handful of capital appeals in his time on the bench, but
all of them avoided an eventual death sentence.168 Having served on the
Makwanyane legal team, he remains one of the foremost anti-death pen-
alty advocates in modern Botswana, recently demanding justice for the
indigenous San defendants Maauwe and Motswetla.169

B. The Doctrine Improperly Shifts the Burden to the Defendant
The burden is on the accused to prove the existence of extenuating
circumstances beyond a fair preponderance of the evidence, either by
introducing new evidence or by presenting evidence rejected at trial in a
new light.170 In Sibanda v. State, the judge noted that “the appellant’s
mental state during the attack on the deceased was left very much in the
dark” because the defendant’s attorney failed to make a proper showing
of extenuating circumstances.171 “[W]e know virtually nothing about
appellant’s personality, his motive, his mentality, his past history, experi-
ence and upbringing.”172 The fault, however, was on the defendant: “The
onus was on the Defence to provide the trial court with evidence from

166 Angus and Grant, supra note 67, at 69 (finding judicial determinations on the
death penalty to vary considerably among individual judges in the Transvaal
Provincial Division and the Witwatersrand Local Division). See also Christina
Murray, Julia Sloth-Nielsen & Colin Tredoux, The Death Penalty in the Cape
Provincial Division: 1986-1988, 5 S. AFR. J. ON HUM. RTS. 154 (1989) (confirming
similar findings in Cape Province).
167 Bizos, famous for his anti-apartheid activities, has represented clients like

South African President Nelson Mandela and Zimbabwean opposition leader Morgan
Tsvangirai.
168 See Mhlanga v. State, [1986] BWCA 23 (Bots. Ct. App.) (reducing sentence for

eighteen-year-old defendant to ten years); Molefi v. State, [1986] B.L.R. 452 (Bots.
Ct. App.) (reversing conviction of murder in favor of manslaughter).
169 George Bizos, Preface One: The Death Penalty Should Be Abolished, in

MAXWELL & MOGWE, supra note 16, at 7, 7-8.
171 Sibanda v. State, [1984] BWCA 13 at 6 (Bots. Ct. App.).
172 Id.


which extenuating circumstances might be inferred . . . . Appellant did
not do so and his motivation remains unexplained.”173 As a result of the
Court’s decision, Zimbabwean national Lovemore Sibanda was hanged
on January 9, 1984.174 However, the case of Molale v. State may soften
the rule. The Molale court held that if the defendant does not show
extenuating circumstances, the judge may find them on his own.175
“[T]he law has not put any onus on an accused to prove even on balance
of probabilities that extenuating circumstances exist in his case.”176
Rather, the trial court has the responsibility and duty to examine the evi-
dence after conviction, regardless of any presentation by the defendant.
The Court appeared to find extenuating circumstances not brought forth
by counsel.177 If followed, this decision may lighten the defendant’s bur-
den. It does not solve the fundamental transparency problem, as it leaves
even more discretion to the trial judge alone, opaque and unreviewable.
Passing the burden to the defendant makes the defendant’s choice of
counsel especially relevant. The Constitution of Botswana guarantees the
right of a defendant “to defend himself before the court in person or, at
his own expense, by a legal representative of his own choice.”178 While
the state generally does not provide representation to indigent defend-
ants, as attorney Duma Boko explains, “[i]t has now become standard
practice to assign counsel, at nominal cost to the state, to an accused fac-
ing murder charges.”179 But, as Boko notes, because the state pays essen-
tially nominal fees, “the quality of such representation mostly leaves a lot
to be desired.”180 Indeed, a pro deo attorney receives, in total, one-tenth
of the average amount of an attorney in private practice for a single court

173 Id. at 7.
174 FIDH AND DITSHWANELO, supra note 7, at 34.
175 Molale v. State, [1995] B.L.R. 146 at 4 (Bots. Ct. App.).

176 Id.

177 Id.

178 BOTS. CONST., ch. II, § 10(d). The provision is sweeping, and guarantees

innocence until proven guilty, notification of the offense, adequate time for preparing
a defense, right to confront witnesses and present evidence, and the right to an
interpreter. Id. § 10.
179 Duma Gideon Boko, Fair Trial and the Customary Courts in Botswana:

Questions on Legal Representation, 11 CRIM. L.F. 445, 454 (2000). Although
“standard practice,” this requirement of affording capital defendants a lawyer is not
enshrined in the Constitution. Id.
180 Id. As Boko notes, the South African Constitutional Court discussed the

pitfalls of pro deo counsel in the Makwanyane case: “Pro Deo Counsel are paid only a
nominal fee for the defence, and generally lack the financial resources and the
infrastructural support to undertake the necessary investigations and research, to
employ expert witnesses to give advice, including advice on matters relevant to
sentence, to assemble witnesses, to bargain with the prosecution, and generally to
conduct an effective defence.” Id. at 454 n.40.


attendance.181 The state also only pays these fees after the conclusion of
a case.182 Devenish, writing in the South African context, notes that pro
deo counsel and the frequent use of interpreters aggravate the possibility
of judicial error in a trial.183 In fact, the South African Constitutional
Court in Makwanyane cited the shortcomings of pro deo counsel in strik-
ing down South Africa’s death penalty.184
In a number of cases, defendants have challenged their sentences based
on ineffective legal representation. For the indigenous San defendants
Maauwe and Motswetla, acquitted after years on death row, the disas-
trous performance of defense counsel precipitated Ditshwanelo’s inter-
vention in the case, the first NGO to receive locus standi in a criminal
proceeding.185 Maauwe and Motswetla’s pro deo attorneys did not prop-
erly prepare for or participate in courtroom proceedings.186 Had the
attorneys read their clients’ files, they would have known the defendants’
confessions were recorded in Kalanga, a language neither defendant
understood.187 The attorneys did not challenge the possibly coerced con-
fession or other questionable evidence at trial.188 Indeed, affidavits from
prison officials show that the attorneys never visited the defendants a sin-
gle time.189 Like attorneys, the Constitution guarantees the presence of
interpreters in all court proceedings.190

182 JO OLIVIER, KNOW YOUR LAW: A GUIDE TO CONDUCTING DEATH PENALTY
CASES 1 (Ditshwanelo, 2005).
183 Devenish, supra note 29, at 18.
184 State v Makwanyane & Mchunu 1995 (3) SA 391 (CC) ¶ 50 (S. Afr.) (“[T]here

are limits to the available financial and human resources . . . which will continue to
place poor accused at a significant disadvantage in defending themselves in capital
cases.”).
185 Ditshwanelo, Death Penalty Project Progress Report - 1999, http://www.

ditshwanelo.org.bw/images/Death%20Penalty%20Project%201999%20-%20full%20
report.pdf (last visited March 27, 2008).
186 MAXWELL & MOGWE, supra note 16, at 63-65.
187 Id.
188 Id.
189 Id.
190 BOTS. CONST., ch. II, § 10(2)(f). In Mmesetse v. State, the Court described the

presence of interpreters as imperative to a constitutionally fair trial: “In order to give
content to the right of an accused person in terms of Section 10(2)(f) of the
Constitution to be assisted by an interpreter if he cannot understand the language in
which the trial is being conducted, there is an obligation on the presiding judicial
officer to apply his mind and to satisfy himself that the interpreter provided for the
accused’s assistance possesses the necessary competence.” MAXWELL & MOGWE,
supra note 16, at 64, quoting Mmesetse & Moloi v. State, Court of Appeal Criminal
Appeal 15/98 (unreported). In the case of Maauwe and Motswetla, the two
indigenous San men acquitted after years on death row, the Court found that the
confession statement supposedly verified by the defendants to have been written in
iKalanga, a language neither of the two men spoke. Authorities made no attempt to


The burden of proving extenuating circumstances thus falls on the
party least able to bear that burden. In Kobedi v. State, the defendant
challenged his death sentence on the grounds of ineffective pro deo rep-
resentation. In a press release, Ditshwanelo expressed concern that a
lawyer unfamiliar with trying death penalty cases represented Kobedi at
his original hearing, failing to raise important legal and factual issues.191
The Court was not persuaded: “It is not for this Court to criticise the
Botswana pro deo system,” as the “country has a large number of compe-
tent and skilled legal practitioners” who adequately represent most indi-
gent capital defendants.192 Kobedi’s lawyer, the Court found, adequately
represented him, finding that the cross-examination of witnesses to be
“searching and vigorous. The appellant . . . was well led and the submis-
sions to the trial court were full and detailed.”193 However, criminal
cases are costly and time-consuming to prepare and earn little; pro deo
lawyers often only receive briefs shortly before the trial date.194 This
explains the reluctance of senior attorneys to take pro deo cases even
when designated by a court to do so. “The result is that most pro deo
cases are handled by inexperienced lawyers who lack the skills, resources,
and commitment to handle such serious matters [affecting] the rights of
the accused,” one NGO network reported.195 A discretionary death sen-
tence would force the prosecutor to prove both guilt and sentence beyond
a reasonable doubt without shifting the burden to the defendant. To help
fill the void in legal representation, Ditshwanelo published a booklet enti-
tled “A Guide to Conducting Death Penalty Cases” in 2005, the first spe-
cific guide for pro deo capital counsel in Botswana.196

C. Secrecy in the Death Penalty Appeals Process Aggravates the Lack
of Transparency in Judicial Sentencing
After upholding his capital sentence, the Botswana Court of Appeal
accepted Kobedi’s request that execution be postponed until the Advi-
sory Committee on the Prerogative of Mercy, the body that advices the
president on pardoning and commuting death sentences, could hear an
appeal. The Court “shift[ed] moral responsibility for Mr. Kobedi’s life to
the Clemency Committee and the President,” wrote the Ditshwanelo

translate it into their Sesarwa dialect of Secherechere, and court officials did not
question whether the defendants understood the confession statement even though
the defendants stated they needed the assistance of a Sesarwa interpreter. MAXWELL
& MOGWE, supra note 16, at 63-65.
192 Kobedi v. State, [2003] BWCA 22 at 42 (Bots. Ct. App.).
193 The lawyer only represented Kobedi for five months out of the ten years since

Kobedi committed the crime. Id.
194 Olivier, supra note 182, at 1.


Botswana Centre for Human Rights.197 According to Section 53 of the
Botswana Constitution, the president has full discretion to substitute,
reduce, or lift a criminal sentence, including the right to reduce a death
sentence to life imprisonment.198 Section 54 provides for an Advisory
Committee on the Prerogative of Mercy, consisting of the Attorney Gen-
eral and a Cabinet Minister and medical practitioner to be appointed by
the president.199 This Committee, the Constitution states, “may regulate
its own procedure.”200
The minimal procedures for the Committee are outlined in Sec. 55 of
the Constitution: “Where any person has been sentenced to death . . . the
President shall cause a written report of the case from the trial judge,
together with such other information derived from the record of the
case . . . to be considered at a meeting of the Advisory Committee on the
Prerogative of Mercy.”201 The Committee’s proceedings are secret. The
little available evidence indicates that the president invokes the power to
commute or pardon a death sentence extremely rarely, if ever.202 This is
understandable: “to overinvoke this power might give rise to accusations
of executive interference in the affairs of the judiciary.”203 Furthermore,
“[t]he president is not . . . obliged to follow the Committee’s advice,”
Fombad explains.204 But should the president decline, he personally must
sign the death warrant ordering the execution. “The exercise of the pre-
rogative of mercy constitutes a serious interference with the judicial pro-
cess, and is exercised only for good cause,” Fombad adds.205 The
president will likely intervene in “only the most exceptional and unusual
situation” to reverse a judicial determination favoring the death
sentence.206
The lack of transparency in the Clemency Committee’s operations
directly impacts the way judges hand down sentences. This is precisely
what happened in Kobedi’s case. The Court of Appeal refused to reopen
Kobedi’s trial when Kobedi produced expert medical opinion showing

198 BOTS. CONST. § 53.
199 Id. § 54.
200 Id.
201 Id. § 55.
202 MAXWELL & MOGWE, supra note 16, at 105 (“[I]t is not clear whether a

President of Botswana has ever exercised his clemency power in a death penalty
case.”). According to Prof. Nsereko, the president commuted three death sentences
in the 1980s. Nsereko, supra note 10, at 266. According to attorney Kgafela Kgafela,
there has only been one case of clemency, and this was “many years ago.” SOUTHERN
AFRICAN LEGAL ASSISTANCE NETWORK, SOUTHERN AFRICAN REGIONAL DEATH
PENALTY WORKSHOP REPORT: “DEATH TO DEATH PENALTY” (Nov. 16, 2005).
203 Nsereko, supra note 10, at 266-67.
204 Fombad, supra note 9, at 331.
205 Id.
206 Id.


that the deceased could not have been killed by his pistol, and it refused
to commute his sentence after the defendant had spent years on death
row.207 Instead, the Court shifted its responsibility. “The execution of
the sentence of death is stayed pending the appellant’s full exercise of his
rights to a petition for clemency to the State President,” the Court held,
noting that the Court’s own decision as well as the trial judge’s report
should be given to the President. “For the assistance of the Advisory
Committee, the Court also respectfully draws the attention of the Com-
mittee to the submissions made on behalf of the appellant to this Court as
to his state of physical and mental health and in regard to” the five-year
period the defendant spent on death row.208
The order staying Kobedi’s execution until he could apply for clemency
was wholly unnecessary. According to Nsereko, people sentenced to
death in Botswana need not apply for pardon or commutation; “The Con-
stitution obligates the president to consider exercising his powers of pre-
rogative of mercy in respect of all convicts who have been sentenced to
death.”209 The shadowy workings of the Committee allowed the Court to
avoid passing judgment on the more troublesome aspects of Kobedi’s
case. As Bojosi writes, the Court found that the defendant had not suf-
fered unconstitutional delay while languishing on death row because the
delay was a result of the defendant’s own actions. The Court ignored the
sixteen months the state took to file affidavits and the nine months the
state wasted before appointing counsel for the defendant.210 The “pris-
oner’s counsel made errors which proved fatal to the prisoner’s cause.
He failed to adduce evidence of the conditions on death row that the
defendant was subjected to . . . [and] evidence of the prisoner’s special
circumstances, like his mental and physical health.”211
Human rights observers have long criticized the Clemency Commit-
tee’s lack of transparency. “The Clemency Committee regulates its own
procedure and its regulations are not available to the public, thus
preventing not only the lawyer of the prisoner but also the population
from knowing the criteria and legal basis of the recommendations made
by the Committee,” one NGO wrote in a critical report.212 To be mean-
ingful, clemency procedures should be clearly defined and rigorously fol-

207 See Kobedi v. State, [2003] BWCA 22, 46-47 (Bots. Ct. App.).
208 Id. at 63.

210 Kealeboga Bojosi, The Death Row Phenomenon Comes to Botswana:

Lehlohonolo Bernard Kobedi v. The State, 38 COMP. & INT’L L.J. S. AFR. 304, 312
(2005).
211 Id.

212 FIDH AND DITSHWANELO, supra note 7, at 26. “Ideally, lawyers should be

able to make oral submissions before the Advisory Committee on the Prerogative of
Mercy in order to draw attention to the crucial aspects of a condemned prisoner’s
clemency petition.” MAXWELL & MOGWE, supra note 16, at 106.


lowed in every case. Ditshwanelo’s guide for pro deo lawyers encourages
lawyers to represent the client during clemency proceedings and even
seek a stay of execution after clemency has been denied.213 The High
Court granted a request to review the case of Maauwe and Motswetla,
the two indigenous San defendants eventually acquitted of murder, even
after the president signed their death warrants.214
Finally, the opaque nature of clemency proceedings and the rapid,
secretive way executions take place make it difficult for defendants to
even have a final chance for review before the African Commission on
Human and Peoples’ Rights, an advisory body of the African Union.215
The state does not notify family members, lawyers, or human rights moni-
toring organizations are not notified of pending executions.216 This
secrecy stymies the one avenue of appeal remaining. Lawyers for Mari-
ette Bosch argued before the Commission that failing to give reasonable
notice to her family and attorneys prior to her execution constituted a
violation of the African Charter. The Commission did not address this
point, but noted the criminal justice system “must have a human face in
matters of execution,”217 including the right to organize her affairs, to
visit with her most intimate family members, to receive spiritual advice,
and to have a proper burial.

V. CONCLUSION
In 2007, the High Court of Malawi declared the mandatory death pen-
alty unconstitutional and ordered the resentencing of all prisoners on
death row with the death penalty as a possible, but not an automatic,
option.218 The Court relied heavily on the South African Makwanyane
decision and on a long line of Caribbean jurisprudence in determining
that the automatic death sentence219 conflicted with the constitutional

214 Curry, supra note 118, at 43.
215 For an overview of the structure and scope of the African Commission, see

EVELYN A. ANKUMAH, THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’
RIGHTS: PRACTICE AND PROCEDURES 13 (1996). The secrecy of executions and burial
practices of death row inmates in Botswana is documented elsewhere. FIDH AND
DITSHWANELO, supra note 7, at 27; MAXWELL & MOGWE, supra note 16, at 106-07.
216 The mother of Oteng Modisane Ping, executed on April 1, 2006, was denied

access to her son the day before his execution; she was told to return the following
week after he had already been hanged. MAXWELL & MOGWE, supra note 16, at 106-
07.
217 Interights (on Behalf of Bosch) v. Botswana, Comm. No. 240/2001 2003

AHRLR 55 (ACHPR 2003).
218 Kafantayeni v. Attorney Gen., [2007] MWHC 1 (Malawi High Ct.); Frank

Phiri, Malawi: High Court Nullifies Mandatory Death Penalty Rule, INTERPRESS
SERVICE/GLOBAL INFO. NETWORK (IPS/GIN), June 20, 2007.
219 Kafantayeni, [2007] MWHC 1 at 5-6 (Malawi Penal Code § 210, which prohibits

courts from considering individual circumstances of the offense or the offender).


ban on cruel, inhuman, and degrading punishment.220 Since guilt and
sentence are determined simultaneously, higher courts are powerless to
reduce the sentence of a guilty defendant, violating the right to fair
trial221 and the right of access to courts.222 Two years later, the Supreme
Court of Uganda struck down the mandatory death penalty for mur-
der.223 The Court ordered the resentencing of all recent prisoners with
the death penalty as a discretionary option and the commutation to life
imprisonment of all death sentences more than three years old.224 Courts
in Uganda and Malawi, unlike the Zambian legislature, chose a discre-
tionary death penalty over the doctrine of extenuating circumstances as a
way of reducing the harshness of a mandatory death penalty regime.
Although their constitutions specifically authorized the death penalty,
these courts reasoned, the constitutions did not necessarily require the
death penalty be mandatory.225
While the doctrine of extenuating circumstances successfully channels
some of the discretion inherent in any death penalty case, recognizing
that no death sentence is truly “mandatory,” the doctrine ultimately mis-
places that discretion. The doctrine is both too flexible and too rigid. It is
too flexible because a judge may consider literally any factor that affected
the mind of the accused at the moment of the crime, even if the evidence

220 Id. (citing MALAWI CONST. ch. IV, §§ 19(1), (2), and (3)).
221 MALAWI CONST. ch. IV, § 42(1)(f).
222 See International Covenant on Civil and Political Rights art. 15, para. 5, Dec.

19, 1966, 99 U.N.T.S. 17 [hereinafter ICCPR]. Malawi is a party to the ICCPR, and
according to the Malawian constitution, courts must interpret domestic laws in
accordance with Malawi’s international obligations. MALAWI CONST., art. 11(2) (“In
interpreting the provisions of this Constitution a court of law shall . . . have regard to
current norms of public international law and comparable foreign case law.”). In
Kafantayeni, the Court found that Malawi must “have regard” to the ICCPR’s
provisions. Kafantayeni, [2007] MWHC 1 at 12-13.
223 Attorney General v. Kigula, [2009] UGSC 6 (Uganda Sup. Ct.). For more on

the Ugandan and Malawian decisions striking down the mandatory death penalty, see
Andrew Novak, The Decline of the Mandatory Death Penalty in Common Law Africa:
Constitutional Challenges and Comparative Jurisprudence in Malawi and Uganda, 11
LOY. J. PUB. INT. L. (forthcoming Dec. 2009).
224 Solomon Muyita, Death Penalty Challenge Extended to Supreme Court, THE

MONITOR (Uganda), July 4, 2005, www.monitor.co.ug/artman/publish/news/
Death_penalty_challenge_extended_to_supreme_court_54552.shtml. At least 377
people had been executed in Uganda since 1938, 51 of them by President Yoweri
Museveni’s government since 1986. This appeal was brought by 417 death row
inmates. Id.
225 See Kafantayeni, [2007] MWHC 1; Kigula, [2009] UGSC 6. In both cases, the

courts found that the constitutions prohibited cruel and inhuman punishment, and the
death penalty savings clauses did not specifically save the mandatory death sentences.
These cases are in accord with Reyes v. The Queen, [2002] UKPC 11, [2002] 2 A.C.
235 (appeal taken from Belize), in which the Judicial Committee of the Privy Council
struck down the mandatory death sentence in Belize.


was inadmissible at trial. The judge’s discretion is largely unreviewable
and unguided, save for a complicated mass of case law, much of it
imported from legal system of apartheid-era South Africa. The doctrine
is too rigid because it constrains the judge to consider only those factors
affecting the accused at the moment the crime was committed, excluding
important policy reasons—religious conversion, familial obligations,
health considerations, and most importantly irregularities in the arrest,
trial, and sentencing of the accused—from the judge’s calculus. The doc-
trine fails to allow a judge to save a defendant’s life even where her trial
was not fair—the ultimate extenuating circumstance. The extent to which
a judge does consider these factors only underscores the lack of guided
discretion in the determination of a sentence.
In addition, by shifting the burden to the defendant to prove extenuat-
ing circumstances, the state stresses the weakest link in the chain: the
often inexperienced and always underpaid pro deo counsel of an indigent
defendant. The doctrine, compounded by the secret workings of the
Clemency Committee, allows a judge full discretion to make a life-and-
death determination and then absolves that judge from taking responsi-
bility for that decision. Extenuating circumstances are for the judge and
the judge alone to weigh; but if he or she cannot find them, the law and
not the judge sentences the defendant to death. In hard cases, a judge
may even pass responsibility for his or her failure to find extenuating cir-
cumstances to the Clemency Committee, a committee notorious for its
secrecy and one that has almost literally never commuted a death sen-
tence.226 A guided discretionary death penalty regime places full moral
responsibility on the sentencing authority to make the final life-and-death
determination, forcing a judge to articulate his or her choice without hid-
ing behind the law. A discretionary system operates more smoothly since
it requires the presence of an aggravating factor before death may be
imposed and keeps the burden of proof in the hands of the state, and it is
more transparent since the factors a judge may consider are ascertainable
and specifically enumerated.
The most fundamental and damning criticism of this perspective favor-
ing a discretionary death sentence over consideration of extenuating cir-
cumstances is, as Bentele writes, that the death penalty is arbitrary and
discriminatory in any form. Critical of South Africa’s 1990 legislation
that ended the doctrine of extenuating circumstances, Bentele writes,
“the assumption that discretion can indeed be ‘guided’ so as to avoid
arbitrary and discriminatory imposition of death sentences appears to be
false.”227 No death penalty regime is ever compatible with human rights
norms, as every sentence, in the end, is a gamble. The death penalty is

226 See supra note 202 and accompanying text.
227 Bentele, supra note 70, at 260.


inconsistently applied, falling most heavily on the poor and racial
minorities.228
Botswana’s courts have made clear that a constitutional change is nec-
essary to abolish the death penalty outright, an unlikely outcome in the
current political environment. Important policy reasons, however, sup-
port a transition from a mandatory to a discretionary death penalty.
First, while an automatic death sentence may be favorable in underdevel-
oped legal systems since judicial discretion may be influenced by corrup-
tion or political influence, this consideration is inapplicable to Botswana
with its mature judicial tradition. Second, with a rising crime rate in the
country,229 more transparent guided sentencing will greatly assist judges
in making consistent and well-reasoned decisions since the number of
death penalty cases is likely to increase. Third, given the secrecy sur-
rounding commutation proceedings, the execution itself, and burial, forc-
ing a judge to specifically articulate why the defendant’s crime is so grave
that it deserves the special and unique punishment of death will not only
make judicial reasoning stronger, but it will make the death penalty pro-
cess appear more legitimate to observers. Secrecy breeds distrust, and
government secrecy breeds distrust of the state.
The time may be right to challenge the weakest aspect of Botswana’s
capital punishment regime: the mandatory nature of the death sentence,
which is not required by Sec. 4(1) of the Constitution, the death penalty
savings provision. Botswana should follow the lead of Malawi and
Uganda. Despite the traditional conservatism of Botswana’s judges, “the
courts in Botswana have demonstrated that they are willing and able to
place some limits on the unfettered use of the death penalty,” Curry
writes.230 Although the courts cannot eliminate the practice, “they can

228 Id.
229 “Botswana is experiencing an increase in the number of firearm-related crimes,
including firearm theft, armed robberies, murder, domestic violence, cattle rustling
and poaching.” Mpho Molomo, et. al., Botswana Country Study, in HIDE AND SEEK:
TAKING ACCOUNT OF SMALL ARMS IN AFRICA 22, 30-31 (2004), http://www.iss.co.za/
pubs/Books/Hide+Seek/Botswana.pdf (last visited: April 8, 2008). For an older study,
see Christine Love & Roy Love, Some Observations on Crime in Botswana, 1980-
1992, 11 J. SOC. DEV. IN AFR. 33 (1996). For an analysis of the relationship between
gender and crime, see Tirelo Modie-Moroka, Vulnerability Across a Life Course: An
Empirical Study, Women and Criminality in Botswana Prisons, 18 J. SOC. DEV. IN
AFR. 145, 147-49 (2003) (showing an increase in crime committed by women). For a
survey of perceptions in Botswana toward the link between crime rates and the
Zimbabwean economic migration, see Wazha G. Morapedi, Post-Liberation
Xenophobia in Southern Africa: The Case of the Influx of Undocumented
Zimbabwean Immigrants into Botswana, c. 1995-2004, 25 J. CONTEMP. AFR. STUD.
229, 236, 237, 239 (2007) (describing the link between the rising crime rate, levels of
xenophobia, and increasing numbers of Zimbabwean economic migrants to
Botswana).
230 Curry, supra note 118, at 43.


ensure that capital crimes are tried under the strictest of scrutiny . . . .”231
The legislature should authorize a commission to specifically enumerate
mitigating and aggravating factors for the benefit of judges and require at
least one aggravating factor to be present in order to merit the death
sentence. This simple change would help restore the waning public confi-
dence in Botswana’s death penalty system by removing discretion from
the minds of judges and placing it on paper. Transparency breeds
legitimacy.

231 Id.

Death Penalty in Botswana

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